Controversial Endangered Species Legal Opinion Withdrawn

The U.S. Department of the Interior withdrew a controversial legal opinion yesterday, which could restore much-needed protections for the Preble’s meadow jumping mouse.

The legal opinion, issued by former Interior Solicitor David Bernhardt under the Bush administration in 2007, reinterpreted the meaning of an important Endangered Species Act phrase, "In Danger of Extinction Throughout All or a Significant Portion of its Range." The Solicitor’s Opinion, also known as the “M Opinion,” had been used as the basis for allowing endangered species protections to apply based on state boundaries rather than biological boundaries.

Duane Short, Wild Species program director for Biodiversity Conservation Alliance, said, “Bernhardt’s reinterpretation was a serious blow to the Endangered Species Act and to imperiled wildlife like the Preble’s meadow jumping mouse. Preble’s lost its threatened status in Wyoming, entirely as a result of the former Solicitor’s Opinion.”

Jason Rylander, senior staff attorney for Defenders of Wildlife, stated, “The withdrawal of this legal opinion should result in restoration of federal endangered species protection for the Preble’s meadow jumping mouse in Wyoming. It was a faulty legal interpretation to begin with, and the Fish and Wildlife Service should take swift action to provide the protections necessary to recover this species.”

“The Endangered Species Act is meant to ensure the long-term survival of plants and animals across their entire range, not in small, isolated populations on a state-by-state basis,” Rylander added. “These critters don’t recognize lines on a map. America’s commitment to good stewardship and protecting wildlife doesn’t end at the state line.”

Background: The Preble’s meadow jumping mouse was first protected under the Act in 1998 because habitat loss and degradation along Front Range streams led to its disappearance from much of the urban corridor in Colorado and Wyoming. In 2003, the U.S. Fish and Wildlife Service rejected three petitions to take the Preble's meadow jumping mouse off the Endangered Species list, finding that the mouse remained threatened by habitat loss and degradation throughout its range.

However in 2008, prompted by the Solicitor’s Opinion, the Preble’s meadow jumping mouse lost federal protections in Wyoming, even though its natural biological range crosses into Colorado from the southeastern portion of the state. The withdrawal of former Solicitor Bernhardt’s legal opinion is a major and essential step toward ensuring that the Endangered Species Act is implemented to protect imperiled wildlife species wherever they are found, not just where it is politically palatable.

Defenders of Wildlife is dedicated to the protection of all native animals and plants in their natural communities. With more than 1 million members and activists, Defenders of Wildlife is a leading advocate for innovative solutions to safeguard our wildlife heritage for generations to come. For more information, visit www.defenders.org.